Summary: There was no fault by the Council in a complaint that alleged it did not act in the public interest or behave as a competent local planning authority when it acted as a statutory consultee to a masterplan for a certain development.

The complaint

1. I refer to the complainant here as Mr X. Mr X says the Council did not act in the public interest or behave as a competent local planning authority when it acted as a statutory consultee to a masterplan for a certain development.
2. Mr X says the Council wrongly assumed the developer who proposed a contentious masterplan would reconcile cross-authority boundary issues. Mr X says the Council did not follow planning policy.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council. I considered Mr X’s comments on it.

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What I found

Local Development Order

6. The National Planning Policy Framework (the NPPF) places a strong emphasis on policy that is aimed at boosting the availability of land in the right places for development. To achieve this, the NPPF encourages local planning authorities (LPAs) to use Local Development Orders (LDOs) to help set the planning framework for an area and bring forward development.
7. A LDO is an Order made by a LPA that grants planning permission for a specific development proposal or classes of development. LPAs are encouraged to use LDOs to set the planning framework for particular areas or categories of development where the impacts would be acceptable, and in particular where this would promote economic, social or environmental gains for the area.
8. LDOs can play an important role in incentivising development by simplifying the planning process and making investment more attractive.
9. The process for bringing forward a LDO involves preparing a draft LDO; preparing a statement of reasons that includes the description of the permitted development and area it covers; formal consultation; consideration of representations and drafting of modifications; decision to adopt; and notification to the Secretary of State.
10. A LDO can only relate to land within a LPA’s area. It cannot straddle boundaries although neighbouring LPAs can bring forward separate LDOs that adjoin.
11. When making a LDO, compliance with the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 will need to be considered in relation to developments that fall under Schedule 2 of those regulations.

Complaint background

12. The Council and another council developed a masterplan for three parcels of land including the land used by Rochester Airport. The Councils decided to deliver the plan by use of LDOs.
13. Mr X alleges the report to the Council’s cabinet on the plan contained incorrect and misleading statements. Mr X says the report only considered the proposal from the aspect of business rates and infers financial gain is more important than public safety. Mr X says the report did not contain any risk assessment of the intentions and use of the LDO avoided any consideration of the impact and synergistic effects of the land change use.
14. Mr X says the Council’s preferred planning method is to override policies set out in the National Planning Policy Framework. Mr X says paragraphs 39-46 of the NPPF says all applicants are expected to work closely with those directly affected by the proposals and take account of the view of the community. Mr X says residents were not consulted in accordance with the masterplan or consultation guidance.
15. Mr X says the matter should not be considered until the Council has completed a full environmental impact assessment.
16. The Council explained the LDO and accompanying documents including an environmental statement were subject to two public consultation exercises.

Finding

17. I do not find fault by the Council in the matters raised by Mr X.
18. As to the report to the cabinet containing incorrect or misleading statements, there is an established principle that planning reports are not subjected to the same critical explanation or examination that might be appropriate for the interpretation of a statute. This precedent was set in the case of (R (Zurich Assurance Limited Trading as Threadneedle Property Investments v North Lincolnshire Council [2012] EWHC 3708 (Admin)).
19. The requirement is that there should be a fair reading of the report as a whole. Having read the report and Mr X’s criticisms, it is clear Mr X’s points seek to argue points of planning judgement. I am satisfied the report set out the material considerations that applied to the Order and provided reasoned justification for the judgement reached by planning officers.
20. The report appropriately referred to economic considerations that would result from development. That is one of the key material considerations behind making a LDO.
21. The report did not have to assess the Council’s intentions as Mr X wants.
22. I am satisfied the Council took account of all material considerations including the proposal’s impact on the environment.
23. That use of the LDO would obviate a need to apply for planning permission for a development in the usual way does not mean there was fault by the Council. Government guidance in the NPPF is clear in encouraging LPAs to use LDOs to generate development.
24. I do not find the Council overrode policies in the NPPF. The Council clearly consulted publicly on the draft Order.
25. As to an environmental impact assessment, the Council set out an environmental statement. This complied with its statutory duty.
26. In terms of the Council’s role as statutory consultee to the other council’s Order, I note Mr X considers the Council did not act competently. But I am satisfied the Council acted properly in discharge of its duty.

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Final decision

27. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman